Ifill v State of New York

[*1] Ifill v State of New York 2013 NY Slip Op 52338(U) Decided on June 12, 2013 Ct Cl Ferreira, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 12, 2013
Ct Cl

Shaka Ifill, Claimant,

against

State of New York, Defendant.



117927



For Claimant:

Leventhal & Klein, LLP

By: Jason Leventhal, Esq.

For Defendant:

Hon. Eric T. Schneiderman

Attorney General of the State of New York

By: Thomas Monjeau

Assistant Attorney General
James H. Ferreira, J.

On January 21, 2010, claimant Shaka Ifill (a/k/a Ciya Brown) filed this claim with the Clerk of the Court of Claims seeking to recover damages for an alleged wrongful confinement lasting 94 days from July 22, 2009 through October 23, 2009, while claimant was incarcerated at Marcy Correctional Facility (CF). Claimant also asserts a second cause of action alleging that the alleged wrongful confinement deprived him of his right to due process of law under the New York State Constitution. A bifurcated trial on the issue of liability was conducted on January 10, 2013 at the New York State Court of Claims in Albany, New York. Claimant testified on his own behalf and submitted several documentary exhibits in support of his claim, which were received into evidence without objection. Defendant called two witnesses on its behalf and offered no additional documentary evidence at trial.

The relevant facts underlying this claim are largely undisputed. On November 8, 2002, claimant was sentenced to a three-year determinate of imprisonment with three years of post-release [*2]supervision (PRS) following a conviction for attempted burglary in the second degree.[FN1] The three-year term of imprisonment was completed on May 24, 2005 and claimant was released to PRS. In the intervening three years between claimant's release from prison and the arrest that led to the claim here, claimant was declared delinquent by the New York State Division of Parole (DOP) on two occasions and returned to the custody of the New York State Department of Correctional Services (DOCS)[FN2] to serve additional terms of incarceration.

On May 29, 2008, during the pendency of his PRS, claimant was arrested in Richmond County and charged with several felony offenses. On June 9, 2008, DOP declared claimant delinquent from his PRS and, on June 20, 2008, claimant pleaded guilty to a violation of his parole and was sentenced to serve the duration of his PRS in DOCS custody. Thereafter, on July 24, 2008, claimant pleaded guilty to one count of criminal possession of a weapon in the fourth degree to satisfy the criminal charges pending in Richmond County. On August 5, 2008, the Honorable Alan J. Meyer of the Richmond County Criminal Court sentenced claimant to a definite term of imprisonment of nine months, which was to be served concurrently with claimant's term for violation of his PRS. Claimant remained incarcerated in the custody of the New York City Department of Corrections (NYCDOCS) at Rikers Island for approximately six months. His term of incarceration with NYCDOCS ended on November 24, 2008. On December 2, 2008, claimant was returned to DOCS custody to serve out the remainder of his PRS.

Claimant was received initially at Ulster CF for reception and processing and, on December 3, 2008, a parole jail time certificate was prepared for claimant. This certificate sets forth the amount of Parole Jail Time Credit (PJTC) to which claimant was entitled based on his detention in various correctional institutions subsequent to the issuance of the warrant charging him with violation of his parole. Two such certificates appear to have been produced on that date; the first (exhibit 11) sets forth that claimant was detained in various correctional institutions inclusive on the warrant charging violation of his parole from June 9, 2008 until December 1, 2008, and that he was entitled to 176 days of PJTC. Handwritten notes on the bottom of the certificate note claimant's arrest date of May 29, 2008, his sentencing date of August 5, 2008, "9 months," presumably to indicate the length of his sentence, "Lodged" and "J.D." of June 9, 2008, and the statement "Took 180 days." The date of June 9, 2008 on the fourth line of the certificate is crossed out and "11-24" is written above it. The second parole jail time certificate (exhibit 12), which contains none of the handwritten notes on exhibit 11, sets forth that claimant was detained in various correctional institutions inclusive on the warrant charging violation of his parole from November 24, 2008 until December 1, 2008, and that he was entitled to only eight days of PJTC.

Claimant was transferred to Mohawk CF on December 16, 2008. At some time after arriving at Mohawk, claimant received his classification sheet, which was dated December 4, 2008 (exhibit [*3]8). This document classified, among other things, claimant's time served, time owed, good time, maximum expiration date (MED), PJTC, and early release date. After reviewing the form, claimant believed that it failed to count the time that he spent incarcerated at Rikers Island. The MED on exhibit 8 is January 9, 2010, whereas claimant's original MED was July 24, 2009. Claimant believed that the original date should not have changed but did not choose to address the matter with anyone at Mohawk CF. Instead, he composed an affidavit requesting review of the computation of his jail time (exhibit 1). Annexed to this affidavit was the court order for investigation and report from the New York City Department of Probation, dated July 24, 2008. This form indicated that claimant's sentencing date was August 5, 2008 and that a judicial sentence promise was made to claimant for "Nine (9) months jail conc. with Time Serving + FOP." This affidavit was received at the DOP Office of the Counsel on January 16, 2009 and at the DOP at Mohawk CF on February 2, 2009. It does not appear that claimant ever received a response to his affidavit.

Claimant was transferred to Marcy CF on February 5, 2009. While at Marcy CF, claimant believes that he spoke with Facility Parole Officer II (FPO II) David Blair on at least one occasion with regard to his belief that the time calculations were incorrect. Claimant testified that FPO II Blair's response to this assertion that the only information he had was what was in the record, and that inmates always say they are not supposed to be in prison (Tr. 26, 45).[FN3] On May 29, 2009, claimant received a written memorandum from FPO II Blair (exhibit 2), likely in response to one of claimant's verbal queries. In the memorandum, FPO II Blair indicated that the classification sheet was correct, and that claimant was entitled to only eight days of PJTC for his time in jail from November 24, 2008 through December 1, 2008. The memorandum further indicates that claimant was not entitled to any of his jail time served for the criminal possession of a weapon charge, and that he was entitled to credit for only the time where he was "available only to our warrant." Claimant testified that he believed he spoke with FPO II Blair again after receiving the memorandum, but otherwise spent his time trying to find a way to prove that the calculations were incorrect. Claimant responded to the May 29 memorandum in a response dated June 10, 2009 (exhibit 3), in which he requested further information. FPO II Blair responded in a June 11, 2009 memorandum (exhibit 4), which stated:

"We can give you [PJTC] from 6/9/08 (date we lodged the warrant) instead of from 11/24/08 if you can verify the 9 mths [sic] sentence for CPW 4th was concurrent with the parole violation. A certified disposition from Richmond Criminal Court or a copy of the minutes from the 8/5/08 hearing if it states the time is concurrent" (emphasis in original).

Claimant testified that, upon receiving this memorandum, he contacted the Richmond Criminal Court and asked for a copy of the disposition and sentencing minutes, which were provided to him (Tr. 17-18). It appears, however, that claimant is referring to the Court Order For Investigation and Report, which is annexed to exhibit 5. Claimant testified that he believed that this form was the actual sentence and commitment order (Tr. 35), although it is evident to the Court that it is not. In any event, he filed that document with DOP at Marcy CF. On July 16, 2009, claimant contacted DOP at Marcy CF once again, this time to ask that they return the "court order and [*4]certificate of disposition" to him (exhibit 6). The requested documents were apparently returned to him on July 20, 2009.

On October 13, 2009, claimant provided DOP at Marcy CF with Judge Meyer's August 5, 2008 sentence and commitment order (exhibit 7). Claimant testified that it took him so long to provide this document to DOP because of time he spent "in a box" due to various disciplinary infractions (Tr. 40). This was received by DOP on October 14, 2009. On October 23, 2009, claimant was discharged from Marcy CF after his MED was adjusted to July 21, 2009 (exhibit 15). Claimant testified that he was released with immediate effect and was not required to go through any further processing or exit interviews before being discharged from Marcy CF (Tr. 47).

Richard de Simone, who is in charge of the Office of Sentencing Review for DOCS, testified that his office "addresses the legal issues surrounding sentencing and release dates of inmates and paroles [sic]" (Tr. 52). His job sometimes requires reviewing and calculating sentences for individuals in DOCS custody, and he did so with claimant's sentence in a document dated November 16, 2011 (exhibit 16), which was created at the request of the Office of the Attorney General. Mr. de Simone testified that he was looking to determine the effect that a change in PJTC had upon the MED of claimant's sentence.

Mr. de Simone described PJTC as follows:

"If you're on community supervision, some part of your sentence is running. On the day you declare delinquent, your sentence stops running, and then it's held in abeyance until one of the two thing happens, you're restored to supervision or you're returned to state prison.

The penal law allows you to earn credit for part of that period in between those — either part or all or none of that period in between" (Tr. 54-55).

In calculating PJTC, three factors are considered pursuant to Penal Law § 70.40 (3) (c): 1) whether the inmate is being detained solely on a parole warrant; 2) whether the inmate is being detained on a new arrest warrant that culminates in either a dismissal or acquittal; or 3) so-called "spill over" time, which occurs when the inmate is in jail on a new arrest and that arrest culminates in a conviction. Under the third category, the inmate can receive PJTC for "only the time you spent in jail that exceeded the length of your new sentence" (Tr. 56). Mr. de Simone testified that claimant's time at Rikers Island was exactly the kind of jail time envisioned under Penal Law § 70.40 (3) (c) (iii) (id.). He also noted that, where a definite sentence is imposed concurrently, an inmate may "double dip" and receive PJTC for both the local sentence and any parole violation (Tr. 57). Essentially, the inmate "can have the time that was credited to the new sentence also credited as parole jail time to the prior sentence" (id.).

Mr. de Simone also addressed calculation of sentences pursuant to Penal Law § 70.25 (1). Under subdivision (1) (b) of that statute, if a sentencing court fails to specify the manner in which a definite sentence imposed by it is to run, the sentence "shall run concurrently with any sentence imposed at the same time and shall be consecutive to any other term."[FN4]

With regard to the initial calculation of claimant's sentence upon his return to DOCS custody on December 2, 2008, with which Mr. de Simone was not involved, he testified that claimant's adjusted MED when he was restored to PRS on December 26, 2007 was July 24, 2009. As of the June 9, 2008 delinquency date, claimant owed one year, one month, and 15 days of delinquent time. Claimant had, however, earned eight days of PJTC before he came back to DOCS on December 2, 2008, leaving him owing a total of one year, one month and seven days of PRS. The PRS resumed running upon claimant's return to DOCS on December 2, 2008, giving him an adjusted MED of January 9, 2010.

With regard to the recalculation of claimant's release dates that was performed on October 23, 2009, claimant was credited with an additional 168 days of PJTC for a total of 176 days of PJTC, changing claimant's MED to July 21, 2009. Mr. de Simone testified that the amount of PJTC changed because DOP received the sentence and commitment order for claimant's Richmond Criminal Court sentence, which indicated that the nine-month definite term was to run concurrently with his prior state prison sentence. The information received by DOP in October 2009 regarding claimant's nine-month concurrent sentence would have changed the initial calculation. Mr. de Simone testified that, without verification that the sentence was concurrent, the rule pursuant to Penal Law § 70.25 (1) (b) is that silence in a sentence and commitment order means that a definite sentence should be treated as consecutive to any prior imposed sentence (Tr. 58). Mr. de Simone further testified that DOCS has generally required that an inmate provide a certified copy of disposition when there is a dispute about calculations (Tr. 75).

On cross-examination, Mr. de Simone acknowledged that DOP policy and procedures require a facility parole officer or their designee to review a sentence and commitment order and/or a jail time certificate in an inmate's case folder to assure accuracy (Tr. 65-66). Mr. de Simone also reviewed exhibit 11, one of the parole jail time certificates prepared on December 3, 2008. He testified that the notations on the document indicate that claimant was arrested on May 29, 2008 and sentenced on August 5, 2008 to a nine-month term, of which he must complete two-thirds, which appears to explain the handwritten reference to "180 days" on the page (Tr. 67). Mr. de Simone testified that he believed that the crossing out of June 9, 2008 with "11/24" written in its place appeared to be granting claimant "spill over" time of eight days (id.). He could not explain why one form would have properly calculated that claimant was owed 176 days of PJTC and was then changed to the incorrect number of days, and had no personal knowledge of the preparation of exhibits 11 and 12. Mr. de Simone agreed "that knowing what we know now, in retrospect, [claimant's initial PJTC of eight days] was [an] incorrect" calculation (Tr. 69).

David Blair testified that he was the FPO II at Marcy CF for approximately eight years before his retirement from DOP in July 2011. His general responsibilities in that role included managing the office, overseeing parole officers and secretarial staff, preparing parole forms for reports for the Parole Board, and sitting in with the Parole Board. Mr. Blair testified that inmates would often contact him with regard to their belief that their sentences were not properly calculated (Tr. 78). His practice while at Marcy CF was that, when contacted by an inmate with such an issue, he would take [*5]it as a priority and immediately look through their inmate folder to check the paperwork from the reception center and the Department of Criminal Justice Services report to try and determine if the time calculated was correct. If an inmate was dissatisfied with the response he provided and still believed there was a problem with the calculation, he "would steer them in the direction as to what they would have to do" (Tr. 80). This may include referring the inmate to either the inmate records coordinator or the parole counselor's office for further explanation.

Mr. Blair explained that usually the claims of wrong calculations stemmed from time spent in county jail on a misdemeanor, and generally concerned whether terms were imposed consecutively or concurrently (Tr. 80-81). DOP policy and procedure with regard to proving that a sentence was calculated incorrectly was to have the inmate obtain the sentence and commitment order from the sentencing court so that DOP could verify the claim. If DOP was able to verify that a sentence was concurrent, then they could go ahead and redo the time calculation. Mr. Blair testified that there was no DOP policy or procedure that required him to seek out or obtain these local court documents on behalf of an inmate, nor was he aware of any other legal requirement that he do so (Tr. 82).

With regard to his May 29, 2009 memorandum to claimant, Mr. Blair testified that it was typical of a memorandum that he would generate after reviewing an inmate's sentence calculation for accuracy (Tr. 82-83). In order to prepare that particular memorandum, he would review the time calculation that came up from reception, the PJTC done at reception, and the parole folder to see if there was an updated rap sheet that showed any arrests or convictions during that violation time. After his review, Blair concluded that the reception center's determination of eight days of PJTC was sufficient.

With regard to exhibit 11, Mr. Blair testified that the handwritten comments on the bottom of the page are not unusual. While he was not involved in the production of that document, he surmised that the date of June 9, 2008 was crossed out and "11/24" written in its place because the supervising parole officer at reception must have determined that claimant was also serving time on a misdemeanor case, and so he changed the calculation of 176 days to 8 days (Tr. 86). Typically when that happens, a memorandum will be attached to the sheet, which is what appears to have happened here, because the FPO II wrote that there was a nine-month sentence on August 5, 2008, and took 180 days from it. Mr. Blair could not recall the meaning of the "JD" that was written on the page. He testified that he has seen parole jail time certificates that are prepared and changed on the same day, but could not speak to any particular reason why that might happen (Tr. 87-88).

Mr. Blair testified that the note he received from claimant on June 11, 2009 (exhibit 3) was representative of a fairly common note that inmates would send him, and that he responded by notifying claimant that he would need to obtain either a certified disposition from the court or a copy of the sentencing minutes to prove that the sentence was to run concurrently (Tr. 90). He stated that these were the standard documents that inmates were required to produce in order to prove what their sentence was (see id.). With regard to the court order for investigation and report annexed to exhibit 5, Mr. Blair testified that it was not a commitment paper and that it was not acceptable as proof of the imposition of a concurrent sentence (Tr. 91).

With regard to exhibit 7, which he received on October 14, 2009, Mr. Blair testified that it did contain the sentence and commitment order and from that he was able to verify that claimant's sentence was concurrent. At that stage, the general procedure would have been to recalculate the PJTC owed to claimant, and then a copy of those documents would go to the inmate records [*6]coordinator to process release of the inmate. Exhibit 10 is the parole jail time certificate that he produced on October 21, 2009 after claimant provided him with the sentence and commitment order. As claimant's sentence had reached its MED by that point, there was nothing else to do except have DOCS initiate claimant's release from prison.

During cross-examination, Mr. Blair testified that he did not recall ever seeing claimant's January 14, 2009 affidavit (exhibit 1), likely because it was received at Mohawk CF, not Marcy CF (Tr. 96-97). Mr. Blair also repeated that he had no obligation to obtain missing commitment documents from a local court if they were not present in the inmate's folder: "There was no obligation for us because we are only concerned at the matter — usually at the matter at hand, the state term, and the only time it would become concerning is if the inmate approached me and said, I'm owed time" (Tr. 98). Referring to DOP's Policy and Procedures Manual (exhibit 9), Mr. Blair testified that he was required to review a sentence and commitment order for accuracy "if we had it" (Tr. 98). If they did not have it, there was no responsibility to obtain it "because at that point in time, there would be no reason for us to obtain it" (Tr. 99). All the previous calculation work would have been done at the reception center before it was ever sent to DOP. "[T]here would be no reason for me to believe that there would be any issues at that point of a — of a prior misdemeanor case somewhere. So, it wouldn't be — it wouldn't be relevant to us" (Tr. 99). Mr. Blair testified that, generally speaking, DOP often did not receive commitment papers from local courts, so the only time it would be relevant to review them was if an inmate was questioning his or her time based on an alleged discrepancy between concurrent and consecutive time (Tr. 100). Mr. Blair reaffirmed that there was no requirement in DOP policy and procedures that he obtain a sentence and commitment order on behalf of an inmate, only that he is supposed to review it for accuracy (Tr. 101). In a situation where an inmate is questioning time and no commitment paper from the jail is in the inmate's folder, "my superiors told me and other supervisors that we are to ask the inmate to go ahead and get that, and then we will adjust the time if needed" (Tr. 101). This was not a written directive: "[t]he policy and the procedures states we are to review it if we have it, but it doesn't state that if we don't have it, that we have to do what we got to do to get it" (Tr. 102). Mr. Blair did testify that there were times where he would personally contact a court or clerk's office to obtain documents, perhaps if an inmate was experiencing particular difficulty in obtaining the documents, but that DOP procedure was for the inmate to attempt this first (Tr. 103).

With regard again to exhibit 5, Mr. Blair testified that the attached document was a pre-sentence document that indicated a promise of concurrent time, but it was not actually the sentencing document where concurrent time was given (Tr. 104). While this may lend some credibility to claimant's assertion that the sentence was concurrent, he testified that he could not grant claimant any more PJTC without obtaining the actual sentence and commitment order (Tr. 104-105).

Mr. Blair testified that a New York State sentence and commitment order would generally move with the inmate's file, but it was rare that misdemeanor sentence and commitment orders of a local court would accompany it. Sometimes the local court would send it to DOCS, and that was preferable, but this was not always the case. Mr. Blair testified that even DOCS or DOP requests were not fulfilled 100 percent of the time (Tr. 107).

Turning to the allegations in the claim, claimant asserts one cause of action sounding in wrongful confinement, and another alleging that the period of wrongful confinement constituted a violation of his due process rights under the New York State Constitution. The latter cause of action [*7]must be dismissed. While it has been held that certain constitutional tort claims may be maintained in the Court of Claims (see Brown v State of New York, 89 NY2d 172 [1996]), it has been held generally that where "constitutional tort allegations may be analogized into existing common-law tort[s] for which there are adequate alternate remedies" (Augat v State of New York, 244 AD2d 835, 837 [3d Dept 1997], lv denied 91 NY2d 814 [1998]), a Brown cause of action will not be available. As claimant here clearly has an adequate alternative remedy in his first cause of action for wrongful confinement, the second cause of action for a constitutional tort is hereby dismissed.

"The elements of a cause of action for unlawful confinement are that the defendant intended to confine the plaintiff, that the plaintiff was conscious of the confinement and did not consent to the confinement and that the confinement was not otherwise privileged' " (Sanabria v State of New York, 29 Misc 3d 988, 991 [Ct Cl 2010], quoting Martinez v City of Schenectady, 97 NY2d 78, 85 [2001]; accord Parvi v City of Kingston, 41 NY2d 553, 556 [1977]; Broughton v State of New York, 37 NY2d 451, 456 [1975], cert denied sub nom. Schanbarger v Kellogg, 423 US 929 [1975]). In determining whether claimant was confined wrongfully by defendant, the Court is concerned only with the 94-day period of time following claimant's correct MED of July 21, 2009, as there is no question that defendant was entitled to incarcerate claimant until that date pursuant to the 2002 sentence imposed upon claimant for attempted burglary in the second degree.

Based on the evidence adduced at trial, it is undisputed that claimant has met the first three elements of a wrongful confinement claim. Defendant certainly intended to confine claimant beyond July 21, 2009, as his sentence calculation upon being received by DOCS reflected an MED of January 9, 2010. Claimant was both conscious of his confinement after July 21, 2009 and did not consent to it, as evidenced by his multiple attempts to get his MED recalculated to reflect PJTC for his time served at Rikers Island. The sole remaining question, then, is whether defendant's confinement of claimant for the 94-day period from July 22, 2009 until October 23, 2009 was privileged.

It is well settled that "confinement [is] privileged to the extent that it is imposed under color of law or regulation, specifically in accordance with regulations" (Gittens v State of New York, 132 Misc 2d 399, 402 [Ct Cl 1986]; see also Hudson v State of New York, 35 Misc 3d 241, 248 [Ct Cl 2011]; Mickens v State of New York, 25 Misc 3d 191, 200 [Ct Cl 2009]). Notably, "[i]t is defendant and not claimant who bears the burden of proving that confinement was privileged" (Nelson v State of New York, 20 Misc 3d 1125[A], [Ct Cl 2008], affd 67 AD3d 1142 [3d Dept 2009]; see also Gonzalez v State of New York, 110 AD2d 810, 812 [2d Dept 1985], appeal dismissed 67 NY2d 647 [1986]; Sanabria v State of New York, 29 Misc 3d 988, 991-992 [Ct Cl 2010]).[FN5]

Upon applying the aforementioned principles and weighing the evidence proffered at trial, [*8]including the exhibits received into evidence and the testimony and demeanor of the witnesses, the Court finds that claimant has proven his claim of wrongful confinement against defendant. Defendant's principle contention with respect to privilege, as set forth in its post-trial brief and post-trial reply brief, is that DOCS was never in possession of the sentence and commitment order from Richmond County and, thus, the calculation of claimant's PJTC to reflect only eight days after his time served at Rikers Island was performed correctly pursuant to Penal Law § 70.40 (3) (c) (iii). The problem with this argument, however, is that there was no evidence presented at trial with respect to whether DOCS did or did not receive the sentence and commitment order from Richmond County. No one from the Ulster CF reception center was called to testify about what was received when claimant was returned to DOCS custody. The individual who prepared exhibits 11 and 12, and who presumably would have had knowledge of what documents were delivered with claimant, was not called to testify. The closest semblance of evidence on this matter was Mr. Blair's testimony that DOCS did not generally receive the sentence and commitment orders imposed in local courts, but he spoke only in general terms and had nothing to offer with respect to what DOCS received when claimant arrived at Ulster CF.[FN6] His testimony with regard to what he would have found in claimant's file at Marcy CF when preparing his May 29, 2009 memorandum to claimant does not inform the Court of what was received more than six months earlier at Ulster CF.

Moreover, Correction Law § 600-a provides, in relevant part, that:

"[i]n any case where the sheriff or the commissioner of correction of the city of New York has the duty of delivering a defendant to an institution not under his jurisdiction pursuant to sentence and commitment, such person shall deliver a certified transcript of such record to the person to whom the defendant is to be delivered."

(See also Middleton v State of New York, 54 AD2d 450, 451 [3d Dept 1976], affd 43 NY2d 678 [1977] [pursuant to section 600-a, it was the duty of the Westchester County Sheriff, "upon claimant's commitment to the custody of the Department of Correctional Services, to certify the amount of jail time credit to which claimant was entitled in diminution of his seven-year sentence"]). In the absence of any substantial evidence to the contrary, there is a "presumption of regularity" that "no official or person acting under an oath of office will do anything contrary to his official duty" (People v Dominique, 90 NY2d 880, 881 [1997]). Again, as stated above, it is defendant's burden to prove that the confinement was privileged, and certainly the matter of whether the local sentence and commitment order was delivered to DOCS in accord with the Correction Law § 600-a would be a part of demonstrating that the confinement here was privileged. Defendant has failed to present any evidence on this matter. Accordingly, the Court, as it is required to do, makes the finding that defendant was in possession of claimant's sentence and commitment order from Richmond County when he was returned to DOCS custody on December 2, 2008.

It then follows that if defendant did in fact receive claimant's local sentence and commitment order, DOCS was required to calculate claimant's PJTC based on the concurrent sentence imposed upon him by Judge Meyer and not as a consecutive sentence pursuant to Penal Law § 70.40 (3) (c) (iii) (see Middleton v State of New York, 54 AD2d at 452 [where the terms of confinement are set forth in a sentence and commitment order, "prison officials are conclusively bound by the contents of commitment papers accompanying a prisoner"]; accord Matter of Murray v Goord, 1 NY3d 29, 32 [2003]). The failure, for whatever reason, to credit claimant with the proper amount of PJTC owed to him based on the local sentence and commitment order means that the time he was incarcerated beyond July 21, 2009 was no longer privileged. The fact that some portion of his return to DOCS custody was privileged under the 2002 sentence and commitment order does not mean that his continued incarceration beyond his MED, which resulted from DOCS's failure to properly calculate his PJTC in accord with Judge Meyer's valid sentence and commitment order, was also privileged (cf. Miller v State of New York, 37 Misc 3d 1202[A], [Ct Cl 2012]; Greaves v State of New York, 35 Misc 3d 290, 296 [Ct Cl 2011]).[FN7]

To the extent that defendant contends that it was not obliged to grant claimant the 176 days of PJTC because of a perceived inconsistency between Penal Law §§ 70.25 (1) and 70.40 (3) (c) (iii), at least until 2011, and the Third Department's decision in Matter of Campbell v Fischer (82 AD3d 1562 [3d Dept 2011] [resolving a conflict between Penal Law §§ 70.25 (1) and 70.30 (7) with regard to crediting time served to an inmate who has absconded from State custody]), the Court disagrees. It is well settled that an inmate may be credited for time served in a situation where the sentences imposed for both the parole violation and the offense that caused the parole violation were to be served concurrently (People ex rel. Hicks v Warden, Nassau County Correctional Ctr., 127 AD2d 623 [2d Dept 1987], lv denied 69 NY2d 612 [1987]; see also People v Dupree, 91 AD2d 1071 [2d Dept 1983]).[FN8]

In light of the above determination, there is no need for the Court to consider the matter raised by the parties with respect to whether DOCS has any obligation to retrieve sentence and commitment orders from local jurisdictions within New York State once an issue has been raised by an inmate with respect to PJTC. The Court only notes that the cases cited by defendant on this point (Matter of Guido v Goord, 1 NY3d 345, 349 n 3 [2004]; Matter of Ramos v Goord, 58 AD3d 921, 922 [3d Dept 2009]) find that there is no obligation for DOCS to do so with respect to sentence [*9]and commitment orders from other states, countries, or federal jurisdiction. This Court did not find any case on point with respect to whether DOCS has any obligation to obtain a sentence and commitment order from a local jurisdiction within New York State, and finds no need to pass on the matter at this time.

Thus, based on the foregoing, the Court concludes that claimant has established by a preponderance of the credible evidence his cause of action sounding in wrongful confinement against defendant for the period of time from July 22, 2009 through October 23, 2009, during which claimant was confined at Marcy CF. Any motions made at trial upon which the Court had previously reserved or which remain undecided are denied.

The Clerk of the Court is directed to enter an interlocutory judgment on the issue of liability in accordance with this decision. The Court will schedule a trial on the issue of damages as soon as is practicable.

Let interlocutory judgment be entered accordingly.

Albany, New York

June 12, 2013

JAMES H. FERREIRA

Judge of the Court of Claims Footnotes

Footnote 1:Claimant was sentenced under the alias "Ciya Brown." He testified at trial that he gave the police this name because it was his first arrest and he was scared.

Footnote 2:Both DOP and DOCS are now encompassed within the current Department of Corrections and Community Supervision (DOCCS) (see L 2011, ch 62, pt C, subpt A, § 4, eff. March 31, 2011). Inasmuch as the events in the claim here occurred prior to that change, the Court will refer to both by their former names.

Footnote 3:References to the trial transcript are delineated herein as (Tr. __).

Footnote 4:The Court notes that subdivision (1) of section 70.25 provides that "when a person who is subject to any undischarged term of imprisonment imposed at a previous time by a court of this state is sentenced to an additional term of imprisonment, the sentence or sentences imposed by the court shall run either concurrently or consecutively with respect to each other and the undischarged term or terms in such manner as the court directs at the time of sentence."

Footnote 5:Defendant, in both its post-trial brief and post-trial reply brief, expends considerable effort analyzing the instant claim through the auspices of a negligence claim and the concomitant immunity that could potentially attach for either a discretionary or ministerial act. It is clear to the Court, however, that the claim asserts the intentional tort of wrongful confinement and, if there was any confusion over whether claimant is asserting an intentional or negligent tort claim, it appears to be resolved by claimant noting in his post-trial brief that any discussion of negligence is "inapposite here because Claimant is asserting the intentional tort of unlawful imprisonment" (claimant's post-trial brief at 23).

Footnote 6:The Court also takes note of the fact that exhibit 11, the first parole jail time certificate prepared when claimant was returned to DOCS custody, awarded him with the proper amount of 176 days of PJTC before it was changed to the incorrect amount of 8 days of PJTC set forth in exhibit 12. While not definitive proof of whether DOCS possessed the local sentence and commitment order, it does lend credence to the presumption that DOCS did in fact possess that order.

Footnote 7:The instant claim is also different from those cases set forth in Donald v State of New York (17 NY3d 389 [2011]), in that those cases involved the mistaken imposition of PRS administratively, which was determined to be a discretionary act for which there was no basis for liability.

Footnote 8:Furthermore, to the extent that defendant avers it was not bound to follow the rule set forth by the Fourth Department in Matter of Midgley v Smith (63 AD2d 223 [4th Dept 1978]), which was adopted by the Third Department in its decision in Campbell, the Court also disagrees (cf. Mountain View Coach Lines v Storms, 102 AD2d 663 [1984] [trial courts are bound to follow precedents set by any other department of the Appellate Division until either the Court of Appeals or the Appellate Division of the department wherein the trial court is located pronounces a contrary rule]; accord People v Turner, 5 NY3d 476, 482 [2005]).